Full Case Name:  Re Wildlife Protection Association of Australia Inc. and Minister for the Environment, Heritage and the Arts and Director-General of the Department of Environment and Climate Change (NSW)

1. The Respondent ("the Minister"), by instruments published in the Commonwealth Government Gazette, declared the following Plans to be approved Wildlife Trade Management Plans for the purposes of section 303FO(2) of the Environment Protection and Biodiversity Conservation Act 1999 ("the EPBC Act"):

(a) The Macropod Conservation and Management Plan for South Australia: Commercial Harvest Version was the subject of a declaration dated 20 December 2002 and published in the Gazette on 8 January 2003 (SA T16/195).

(b) The Wildlife Trade Management Plan for Export – Commercially Harvested Macropods – 2003-2007 for Queensland, was the subject of a declaration dated 20 December 2002 and published in the Gazette on 8 January 2003 (Qld T17/233).

(c) The Red Kangaroo Management Plan for Western Australia 2003-2007 and the Western Grey Kangaroo Management Plan for Western Australia 2003-2007 were the subject of declarations made on 8 January 2003 and published in the Gazette on 15 January 2003 (WA T24/451,452).

2. On 20 February 2003 the Applicant lodged appeals against the Minister’s decisions in the Tribunal’s Queensland Registry, one appeal in respect of each State. During July and August 2003 Animals Australia, the Director-General of the Environmental Protection Agency, and the Australian Wildlife Protection Council applied to be joined as parties, and on 14 August 2003 the Tribunal issued a direction by consent joining those parties to these applications.

THE HEARING

3. In the interest of convenience, all matters were heard together in Sydney, on 17, 18 and 22 March, and 2, 3, 4 and 5 August 2004. The Applicant was represented by Mr C Papayanni, and the Respondent was represented by Mr P Hanks Q.C and Ms J Jagot.

4. There were three separate sets of T documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), one in respect of each State. Each contained the documents relevant to the Minister’s approval of the Plan in respect of the relevant State, although between the States the issues are broadly the same.

5. Other material was tendered on behalf of both parties and marked as exhibits, a list of which is at Annexure 1 to these Reasons for Decision. After the hearing, additional information was provided by the Respondent in response to a query by the Tribunal at the hearing, and this has been included amongst the Exhibits and marked as Exhibit 10.

6. A number of witnesses gave evidence before the Tribunal and were cross-examined. Some witnesses were also asked questions by the Tribunal. A list of witnesses is at Annexure 2 of these Reasons.

BACKGROUND

7. The Minister may approve Wildlife Trade Management Plans ("Plans") under section 303FO of the EPBC Act. Before a Plan is approved, the Minister must be satisfied as to the matters listed in section 303FO. That section reads relevantly as follows:

"SECT 303FO 

Approved wildlife trade management plan 

...

(2) The Minister may, by instrument published in the Gazette, declare that a specified plan is an approved wildlife trade management plan for the purposes of this section.

(3) The Minister must not declare a plan under subsection (2) unless the Minister is satisfied that:

(a) the plan is consistent with the objects of this Part; and 

(b) there has been an assessment of the environmental impact of the activities covered by the plan, including (but not limited to) an assessment of: 

(i) the status of the species to which the plan relates in the wild; and 

(ii) the extent of the habitat of the species to which the plan relates; and 

(iii) the threats to the species to which the plan relates; and 

(iv) the impacts of the activities covered by the plan on the habitat or relevant ecosystems; and

(c) the plan includes management controls directed towards ensuring that the impacts of the activities covered by the plan on:

(i) a taxon to which the plan relates; and 

(ii) any tax that may be affected by activities covered by the plan; and

(iii) any relevant ecosystem (for example, impacts on habitat or biodiversity);

are ecologically sustainable; and 

(d) the activities covered by the plan will not be detrimental to: 

(i) the survival of a taxon to which the plan relates; or

(ii) the conservation status of a taxon to which the plan relates; or

(iii) any relevant ecosystem (for example, detriment to habitat or biodiversity); and 

(e) the plan includes measures: 

(i) to mitigate and/or minimise the environmental impact of the activities covered by the plan; and 

(ii) to monitor the environmental impact of the activities covered by the plan; and 

(iii) to respond to changes in the environmental impact of the activities covered by the plan; and

(f) if the plan relates to the taking of live specimens that belong to a taxon specified in the regulations--the conditions that, under the regulations, are applicable to the welfare of the specimens are likely to be complied with; and

(g) such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.

(4) In deciding whether to declare a plan under subsection (2), the Minister must have regard to:

(a) whether legislation relating to the protection, conservation or management of the specimens to which the plan relates is in force in the State or Territory concerned; and 

(b) whether the legislation applies throughout the State or Territory concerned; and

(c) whether, in the opinion of the Minister, the legislation is effective.

(5) A declaration under subsection (2) ceases to be in force at the beginning of the fifth anniversary of the day on which the declaration took effect. However, this rule does not apply if a period of less than 5 years is specified in the declaration in accordance with subsection 303FT(4).

(6) If a declaration ceases to be in force, this Act does not prevent the Minister from making a fresh declaration under subsection (2).

(7) A fresh declaration may be made during the 90-day period before the time when the current declaration ceases to be in force.

(8) A fresh declaration that is made during that 90-day period takes effect immediately after the end of that period."

The "objects of this Part" referred to in subsection 3(a) above are found in section 303BA of the EPBC Act, and are as follows:

"SECT 303BA 

Objects of Part 

(1) The objects of this Part are as follows:

(a) to ensure that Australia complies with its obligations under CITES and the Biodiversity Convention; 

(b) to protect wildlife that may be adversely affected by trade; 

(c) to promote the conservation of biodiversity in Australia and other countries; 

(d) to ensure that any commercial utilisation of Australian native wildlife for the purposes of export is managed in an ecologically sustainable way; 

(e) to promote the humane treatment of wildlife; 

(f) to ensure ethical conduct during any research associated with the utilisation of wildlife; 

(h) to ensure that the precautionary principle is taken into account in making decisions relating to the utilisation of wildlife."

OUTLINE OF APPLICANT’S CASE

8. The Applicant’s submissions were on a generic, rather than Plan specific, basis.

9. While the Applicant’s Statement of Facts and Contentions suggested that the Applicant’s case was to be argued on a broad basis, the matter was conducted much more narrowly, that is, essentially on the basis of animal welfare. In this regard Counsel for the Applicant referred the Tribunal to section 303BA(1) of the EPBC Act. One of the objects of the EPBC Act, stated at section 303BA(1)(e) is as follows:

"to promote the humane treatment of wildlife" 

10. It was submitted that subsection 303FO(3)(f) of the EPBC Act which provides:

"(f) if the plan relates to the taking of live specimens that belong to a taxon specified in the regulations – the conditions that, under the regulations, are applicable to the welfare of the specimens are likely to be complied with; and"

also raises animal welfare as an issue as the Plans relate to the "taking" of live specimens. Paragraph 9A.05(4) of the Environment Protection and Biodiversity Conservation Regulations 2000 ("the Regulations") states that when live specimens are taken under a Plan:

"(a) the animal is taken, transported and held in a way that is known to result in minimal stress and risk of injury to the animal;

(b) if the animal is killed, it is done in a way that is generally accepted to minimise pain and suffering.

Note 1 Code of Practice for the Humane Shooting of Kangaroos, second edition, 1990, published by Environment Australia, applies to the shooting of an animal of a species in the Macropodidae family"

11. It was further maintained that the Code of Practice for the Humane Shooting of Kangaroos (the Code) is not being complied with because:

a) The licensing of kangaroo shooters does not adequately comply with the Code. 

b) Monitoring of the Code is inadequate to ensure compliance. Even if this were not the case, the Code is inadequate for its stated purpose, particularly in respect of young kangaroos.

c) As young kangaroos are not part of the quota and not subject to the Plans, any killing of young kangaroos is contrary to the terms of a licence which permits the taking of kangaroos for sale. The legislation of each State makes it an offence to kill kangaroos generally as kangaroos are a protected species.

OUTLINE OF RESPONDENT’S CASE

Consistency with objects of Part 13A (section 303FO(3)(a))

12. As to the Applicant’s submission that the Plans are inconsistent with the objects of Part 13A of the EPBC Act, in particular section 303BA(1)(e), "to promote the humane treatment of wildlife" Counsel for the Respondent referred the Tribunal to the following extracts from each of the Plans:

"Queensland

(e) to promote the humane treatment of wildlife

Regular reviews of the humaneness of macropod management policy and practice will be conducted, and modifications to existing practice will be made as required. Section 10 of The Nature Conservation (Macropod Harvesting) Conservation Plan 2003 states that a person who takes a macropod must not muster or trap the macropod and that the macropod must be taken in a way specified in the Code of Practice for the Humane Shooting of Kangaroos. A penalty applies where it is found that the code of practice has not been adhered to. A dealer must not accept a skin or carcass that is not taken in the approved manner (T13/171-173).

South Australia 

(e) to promote the humane treatment of wildlife

This management plan requires shooters to comply with the Code of Practice for the Humane Shooting of Kangaroos. An Aim of the Plan is dedicated to animal welfare (Aim 3: Adhere to best practice animal welfare standards...) Adherence to the Code of Practice for the Humane Shooting of Kangaroos is an enforceable condition of permit for all permits that allow for the destruction of kangaroos in South Australia (T12/140-141).

Western Australia

(e) to promote the humane treatment of wildlife

This management plan requires shooters to comply with the Code of Practice for the Humane Shooting of Kangaroos. An Aim of the Plan is dedicated to animal welfare (Aim 3: Adhere to best practice animal welfare standards...). Adherence to the Code of Practice for the Humane Shooting of Kangaroos is an enforceable condition of licence for all licenses that allow for the destruction of kangaroos in Western Australia (T20/373-374)."

13. It was submitted that the essential features of each Plan: the setting of conservative annual quotas by reference to population counts, monitoring of the harvest, mandatory compliance with the Code and the expert evidence on the impact of the harvest on the species - amply support the conclusions that each Plan is consistent with the legislative objects.

Likely compliance with conditions applicable to welfare (section 303FO(3)(f)) 

14. It was submitted that the adoption of the Code by all State Governments and the detailed and ongoing review process in respect of the Code establishes that its requirements are "generally accepted to minimise pain and suffering" in the killing of kangaroos. In its report (Exhibit C), the RSPCA described the Code as setting out "an achievable standard of humane conduct considered to be the minimum required of persons shooting kangaroos".

15. It follows that this requirement, in relation to each Plan, should be expressed as follows: "If a kangaroo is killed, it is likely that the killing will be done in accordance with the Code."

16. Each Plan requires that commercial harvesters adhere to the Code:

• The Queensland Plan requires harvesters to abide by the Code – Qld T12/122, 147. 

• The South Australia Plan requires that all kangaroos taken under the National Parks and Wildlife Act must be killed in accordance with the Code – SA T11/19.

• The Western Australia Plans also require strict compliance with the Code. All kangaroos taken for the commercial market must be killed in accordance with the Code – WA T20/285-286; WA T20/343-34.

17. The level of compliance with the Code found by the RSPCA is sufficient to establish that, if a kangaroo is killed pursuant to the Plans, that animal is likely to be killed in accordance with the Code: between 94.62 per cent (Western Australia) and 99.58 per cent (South Australia) (Exhibit C Table 4.2 at pp 45-46). The commercial pressures on shooters enhance the likelihood of compliance with the Code.

18. In summary, it was submitted, the effect of the legislation is that it is likely, if a kangaroo is killed, that this will be done in a way that is generally accepted to minimise cruelty; through adherence to the Code. The strict requirement in each Plan that the Code be followed (subject to prosecution), monitoring and enforcement measures used in each State and the RSPCA’s findings point to one conclusion – that the outcome required by the legislation will be met.

DISCUSSION OF EVIDENCE AND FINDINGS

19. In coming to the correct and preferable decision, the Tribunal took into account all the evidence, submissions, case law and relevant legislation. We have considered in greater detail the abovementioned concerns primarily relied upon by the Applicant to a greater extent than the other prerequisites to approval which were not put in issue by the Applicant. A number of these statutory requirements were considered within the Reasons of Wildlife Protection Association of Australia Inc & Ors and Minister for The Environment and Heritage & Anor [2003] AATA 236 (13 March 2003). We do not consider it necessary to revisit our earlier findings. Where relevant they are equally applicable to these Plans.

The Code

20. The Code, endorsed by the Council of Nature Conservation Ministers, states that it sets achievable standards of humane conduct and is the minimum required of persons shooting kangaroos – WA T19/366. The most recent formal revision of the Code was on 20 September 1990 – WA T19/366. The Code regulates the method of shooting, fire arms specifications and conditions of use of fire arms, treatment of injured kangaroos and pouch young and also prescribes ammunition specifications.

21. The Code provides that where a kangaroo is wounded, no other animals are to be shot until all reasonable efforts have been made to dispatch the wounded animal. Shot females must be examined for pouch young as soon as the shooter reaches the carcass, and any pouch young must then be killed immediately – WA T19/369, paragraphs (vi), (vii). Methods which are acceptable as causing sudden and painless death include decapitation with a sharp instrument for smaller hairless pouch young and a heavy blow to the head for larger pouch young WA T19/368. The Code also states (WA T19/368): "Larger young can also be dispatched humanely by a shot to the brain, where this can be delivered accurately and in safety."

22. The RSPCA report records the background to the making of the Code (pp 4-5). It also identifies, for each jurisdiction relevant to these proceedings, the outcomes of the review process.

23. The Code’s basic requirements are:

• Kangaroos must be shot using the prescribed calibre rifle with telescopic sight and prescribed ammunition – see, for example, Qld T12/162, 165. 

• The conditions under which shooting is to take place include a stationary platform and target, clear visibility and appropriate range – Qld T12/163. 

• Shooters must aim so as to hit the target kangaroo in the brain, except in the case of a wounded kangaroo – Qld T12/163, 164. 

• Wounded animals must be killed before another animal is targeted – Qld T12/163, 164.

• Female carcasses are to be searched for young when the shooter reaches the carcass and any pouch young then killed immediately (by decapitation, blow to the skull or shooting) – Qld T12/163, 164.

Each Plan requires that commercial harvesters adhere to the Code.

24. The Queensland Plan, as does evidence tendered before the Tribunal, requires harvesters to abide by the Code – Qld T12/122, 147 as follows:

• Taking in accordance with the Code is a condition of all harvesting licences – Qld T12/142.

• Failure to abide by the Code will mean that the taking is unlicensed and is therefore an offence – Egan, Ts 15, Ts 46.

• Licence holders are required to pass a weapons accuracy test and show that they understand the Code – Qld T12/147; Egan, Ts 6-8.

• Monitoring of compliance and active response to information supplied to EPA provides a level of confidence that breaches of the Code will be prosecuted – Egan, Ts 36-38.

25. The South Australia Plan, as does evidence tendered before the Tribunal, requires that all kangaroos taken under the National Parks and Wildlife Act 1972must be killed in accordance with the Code – SA T11/19 and ensures the following:

• Licence holders are required to pass a weapons accuracy test and show knowledge of the Code – SA T11/19; Farroway, Ts 58, 64.

• Compliance with the Code is a condition of each licence, and failure to follow the Code will mean that any killing is unauthorised and therefore an offence – Farroway, Ts 64-65.

• Compliance with the Code is monitored by the staff of the licensing authority – SA T11/20; Farroway, Ts 58-59.

26. The Western Australia Plans, as does evidence tendered before the Tribunal, requires strict compliance with the Code. All kangaroos taken for the commercial market must be killed in accordance with the Code – WA T20/285-286; WA T20/343-34. The Western Australia Plans ensure that:

• Licence holders will be required to pass a weapons accuracy test from 1 January 2005, and show an understanding of the Code in the course of 2005 – (Wyre, Ts p 53).

• It is a condition of each shooter’s licence that the shooter only take kangaroos according to the Code – (Wyre, Ts p30)

• Kangaroo shooters cannot sell, and processors cannot buy, carcasses that are not killed with a single shot to the brain – WA T20/286; WA T20/344.

• Compliance with animal welfare legislation (including the Code) is a priority for staff conducting checks of chillers and plants – WA T20/286; WA T20/344.

• A shooter who does not conform to the Code can be prosecuted for an offence of unlicensed killing – (Wyre, Ts p 52)

• There is not a high level of illiteracy in the industry – (Wyre, Ts p 53).

Section 303FO(3)(a): Consistency with objects of Part 13A: "to promote the humane treatment of wildlife"

• Submission that the Code is inadequate, especially in respect of the killing and the locating and killing of young kangaroos

27. As discussed above, approval of the Plans requires the Minister, and now the Tribunal, to be satisfied as to the matters listed in section 303FO.

28. In light of the submissions of the Applicant the Tribunal considered the factors to which those submissions might relate. While there is some overlap, given the breadth of the submissions in relation to animal welfare, the issues raised have been addressed in relation to what we see as the most appropriate factors. Before doing so it is appropriate to outline relevant provisions of the Code.

29. The Code, which is as mentioned above adopted by all Plans, and compliance with a condition of all licences which is granted under the Plans, deals with pouch young. It provides:

"Shot females must be examined for pouch young and if one is present it must also be killed. Decapitation with a sharp instrument in very small hairless young or a properly executed heavy blow to destroy the brain in larger young are effective means of causing sudden and painless death.

Larger young can also be dispatched humanely by a shot to the brain, where this can be delivered accurately and in safety."

30. It was submitted on behalf of the Applicants that the Code clearly contemplates that "larger young" will be ex-pouch. Culling by a shot to the brain is the same method as that specified for the killing of adult kangaroos. Ex-pouch young are treated as adults in being subject to direct culling rather than being left to starve as a result of a mother being killed. However there was criticism of the suffering that resulted from adoption of this procedure in that there is no obligation on a hunter to pursue young-at-foot in order to kill them following the shooting of the mother.

31. Because the Code does not explicitly address the above aspects of the indirect killing of ex-pouch young consequent upon the killing of a mother, it was submitted that the form of killing referred to in the Code is not then a way that is "generally accepted to minimise pain and suffering", and that the effect on ex-pouch young from killing of the mother does not meet the requirements of paragraph 9A.05(4) of the Regulations. Evidence tendered before the Tribunal referable to this submission is summarised in paragraphs 32-55.

32. Dr Hopwood described the death of a joey left to fend for itself:

"Q...for example, the kangaroos, particularly young kangaroos might run in what we choose to describe as their natural state?

A... If you’re looking at mortality – natural mortality – in a kangaroo population, it is not a nice prospect...

...So this is not a pleasant death, but nature can be fairly harsh, and that’s commonly what happens. In areas where there are a number of predators around, particularly wild dogs or possibly foxes, death for the young-at-foot can be through mauling.... And it had been mauled by presumably a wild dog. If not a wild dog, a fox. And we saw that the animal was distressed before it died....(Ts pp 153-154, 3 August 2004) 

Q...Well, young kangaroos very often the stress in having no mother or being dependent upon a mother and not having her there, can cause them to die, can’t it?

A Well, stress is certainly not good for an animal...(Ts p 164, 3 August 2004)."

33. Dr Croft gave evidence that (Western New South Wales) in 2003 about 90-95 per cent of females had young-at-foot. Young-at-foot may be permitted back into the pouch to suckle for up to three months (according to Mr Wyre) and there is also social learning associated with their being at other times in close proximity to the mother. Young-at-foot generally ‘go off’ if the mother is killed or injured. If the young is still nutritionally dependent when the mother is shot it will not survive. If weaned, it may still not survive as the ability to discriminate between native grasses is compromised. Fostering does not occur. Dr Croft estimated that on the present harvest figures there was likely to be several hundred thousand young-at-foot, most of whom would not survive. Shooters may not even know there are young-at-foot associated with a female. Dr Croft said that no figures are kept of young-at-foot. In cross-examination he said that kangaroos in the wild have a high mortality rate, possibly as high as 50 per cent.

34. Mr Pat O’Brien maintained that in his observation shooters will kill a wounded kangaroo if possible, but if it bounds off then it will not be pursued. He also gave evidence about the practice of using "squeakers" – a large joey squeezed until it squeals as a means of attracting other kangaroos answering the distress call. The squeaker, once exhausted, is discarded.

35. Dr Auty stated that in 1990 he was present at a shoot in Hattah (Victoria) where on the first night 600 kangaroos were shot. The following morning he observed three orphaned joeys, but thought there were probably a lot more. That was the only shoot he had witnessed.

36. Ms Friebe gave evidence about her rehabilitation of orphaned kangaroos. Her account was particularly in relation to socialisation needs of groups of kangaroos in the wild. A group would consist of two males, one of which was the dominant or ‘alpha’ male, and approximately five females. The youngest in a constructed group for likely survival in the wild would be 12-18 months old. The role of the male is not only to mate with the females but to protect the group from other young bachelors. The joeys that come to her are very sensitive to stress, subtly manifested, for example, by a loss of condition and appetite. Joeys remain dependent until they are sexually mature.

37. Ms Wilson described ex-pouch joeys as suffering a "lingering death from starvation, chilling, deprivation, psychic deprivation and increased predation"when their mothers are killed.

38. Mr O’Brien, Ms Wilson and Ms Arnold gave evidence about the cruelty resulting from the use of blinding spot lights. Ms Arnold also gave evidence about having witnessed joeys being pulled from the pouch and thrown against trees or stomped underfoot.

39. Ms Arnold also gave evidence that occasionally mothers would throw joeys out of the pouch, but Ms Barnden said that this was more a matter of the mother losing muscle control over the pouch.

40. Ms Egan agreed there was no record of the number of females that had in- pouch joeys and that shooters in Queensland are not obliged to report on how joeys are disposed of. She said however, that, if there had been any "hint or any murmur of complaint about the treatment of pouch young or young-at-foot by the commercial industry", then the EPA would do everything to pin down what had actually happened and what was occurring. In the past, complaints about the treatment of pouch young and young-at-foot (not in the context of the commercial industry) had been investigated by the EPA – Ts 27-28.

41. On the basis of the existence of standards, the advertised intent to enforce those standards, reliance on ‘dob ins’, industry gossip and the EPA’s follow up, Ms Egan was confident that animals (including pouch joeys) were being treated humanely – Ts 36-37.

42. Ms Egan said the Director received "a lot of feedback from landholders", who were "not backwards in coming forward", but there had been no reports of maimed or starving joeys – Ts 54.

43. As to size of kangaroos, the Queensland Plan provides that kangaroos must be of at least 20 kg. Ms Egan gave evidence that, according to her records, in 2003, this resulted in 39 per cent of red kangaroos taken being female. For other species the female take rate was lower. In South Australia 51.4 per cent of red kangaroos taken under the Plan are female. In South Australia, Ms Farroway said, however, there is no minimum weight requirement. Meat processors however may specify that they are not prepared to accept carcasses below 15 or 18 kg. On analysis average size has been found to be about 20 kg. Ms Friebe’s observations are that the overall size of kangaroos has decreased over the last 12 years.

44. Dr Auty’s recommendation was that the smallest kangaroos be killed so as to minimise the prevalence of orphans. He also recommended the use of captive bolt pistols as a means of killing in-pouch joeys rather than taking them from the pouch and striking them. He did not regard killing immature kangaroos by a blow to the head as humane. Ms Wilson was invited to suggest a more humane method of dealing with in-pouch joeys but could recommend only the end to the industry. She regarded it as impossible to have the industry without cruelty. She added that she recommended the creation of wildlife corridors.

45. Ms Farroway said that while there was no direct monitoring of in-pouch or ex-pouch joey’s in South Australia, there was indirect monitoring by intelligence reports and the Director would investigate any information provided by a landholder – Ts 67.

46. Mr Wyre said that the harvest enables important information to be obtained about the population. It is vital to the conservation of the species that females with pouch young not be excluded from the harvest.

47. The RSPCA review of the Code published in July 2002 (Exhibit C) records the background to the making of the Code (pp 4-5). It also identifies, for each statute relevant to these proceedings, the outcomes of the review process.

48. The standard licence conditions, tracing of carcasses, harvest numbers, enforcement and inspection procedures for each State are set out and assessed in the review.

49. The RSPCA review includes evidence that all State agencies were satisfied that Code compliance was adequate (page 20). Both South Australia and Queensland had in place, at the time of the RSPCA review, compulsory shooting accuracy tests and game meat courses (pages 21 to 23).

50. All individuals (processors and shooters) reported that there was no problem in achieving compliance with the Code (p 28). Nearly all shooters expressed the opinion that a head shot in compliance with the Code was achievable (p 28). The analysis of head shot kangaroos showed a highly significant increase when compared to 1985 – from 86% in 1985 (p 52) to between 94.9 and 99.3% in 2000/2002 (p 49).

51. Dr Hopwood acknowledged that the Code is not perfect and can be developed further and improved but, on balance, the Code gives an excellent welfare outcome when benchmarked to other animal industries – because the Code addresses accurate bullet placement (a major animal welfare issue for every commercially harvested kangaroo).

52. Dr Hopwood concluded the Code is a reasonable safeguard against potential wounding because "it is not difficult with the equipment and methodology stipulated in the Code to reliably place a bullet into the kangaroo head kill zone with monotonous regularity".

53. In respect of young-at-foot, Dr Hopwood agreed that there is a potential animal welfare concern that the orphaned young-at-foot joeys may escape to die of starvation. Dr Hopwood’s opinion is that such a situation could arise but would be infrequent for a number of reasons:

• Selection for size takes shooting pressure of females (males are most commonly shot because they grow to two to three times the size of females).

• Where females are shot there is no necessary correlation between the largest female and the presence of a dependent young-at-foot joey.

• Shooters prefer not to take female kangaroos with dependent young-at-foot joeys because many operate on sustainable resource principles and avoid taking females with large pouch young.

• There is reluctance to use a round of ammunition on a joey that has no economic value.

• There is repugnance at killing large joeys by hand with a club.

• Shooters can easily shoot the young-at-foot because, instinctively, young-at-foot tend to stay close to the shot female unless chased.

• Shooters prefer not to shoot females with large pouch young or young-at-foot. If they are shot then any dependent joeys must also be shot. This can be done as they are naïve and stay with the shot female and do not take off.

54. Dr Hopwood provided a benchmark for animal welfare outcomes. He observed that starvation, disease and predation are the common natural causes of death in kangaroos and that, for the vast majority of kangaroos taken during commercial harvesting, the death is much less painful than kangaroos dying of natural causes. In Dr Hopwood’s opinion, there is confusion between animal welfare and animal interests. Commercial kangaroo shooting confers a net loss on kangaroo interests because it shortens the average kangaroo lifespan by several years. However, it confers a net benefit on kangaroo welfare by offering on average a less painful and suffering style of death, than that he had so graphically described in paragraph 32.

55. Dr Hopwood considered it easy to shoot an adult in the head with a telescopic sight rifle. Processors will not accept body shot carcasses and it would be a breach of the license to do so. Hence it is likely that there will be a high level of compliance with the Code.

56. After careful consideration of the evidence, in particular that of Dr Hopwood and the findings of the RSPCA, the Tribunal is satisfied that the Code adequately and humanly addresses the welfare issues in relation to kangaroos being killed for sale, and that it dictates the manner in which in-pouch joeys are to be dispatched in a manner, which, in the circumstances, is as humane as can be expected. In coming to this view the Tribunal does not doubt that some of the Applicant’s witnesses may have observed the implementation of the Code’s directives in a less than satisfactory manner. That does not mean, in the Tribunal’s view, that the Code and the conduct it prescribes is inadequate.

57. There was some suggestion that the current revision of the Code may address with more precision the disposition of young-at-foot. However this will entail a consideration of the various factors addressed in the evidence given before the Tribunal.

Submission that killing of young kangaroos is contrary to the terms of a licence

58. Counsel for the Applicant referred the Tribunal to the relevant fauna protection legislation for each of the States whose Plan is under consideration in the present hearing:

• Queensland: Nature Conservation Act 1992

• South Australia: National Parks and Wildlife Act 1972 

• Western Australia: Wildlife Conservation Act 1950

59. The Tribunal was taken in some detail through the above fauna protection legislation in respect of each of the States. In essence, the submission was that as killing kangaroos is prohibited (other than as licensed for the purposes of sale) the killing of young kangaroos is contrary to the legislation of each State if they are not to be sold.

60. The Tribunal does not accept this contention. There is licensing in each State which permits some kangaroos to be killed, the killing of which would otherwise be prohibited. Each State makes it a condition of the issuing of its licences that the Code be complied with. The Code requires that joeys be despatched in a certain way. In making the issue of licences subject to the Code, the killing of those joeys becomes part of the licensed arrangement.

61. The submission may be examined from another perspective. If joeys are not permitted to be killed unless for sale, this would lead to the conclusion that, as they are commercially unacceptable (as was the evidence), they would be abandoned by shooters and left to die, as recorded by Dr Hopwood and depicted in the video shown to the Tribunal. Witnesses for the Applicant had, legitimately, expressed a great deal of concern for the welfare of joeys that are not humanely dispatched. It is unlikely, in the Tribunal’s view, that this inevitable result of the interpretation submitted to the Tribunal would be a preferred outcome to the Applicant.

Section 303FO(3)(f): Likelihood of compliance with Code 

Licensing

62. Ms Egan gave evidence that a commercial wildlife harvesting permit cannot be issued in Queensland without two separate competencies being met. One is the successful completion of a TAFE course which covers aspects of Queensland and international law in respect of wildlife, and the Code. The test may be taken orally if the person is illiterate, and licenses are only issued if a prospective licensee scores 100 per cent.

63. The other test is a shooting competency test. This test requires five consecutive shots within an 80 mm target, and a shooter only has one chance per day to take this test. It is undertaken during the day, not in field conditions or at night, with a shooter either sitting, standing or lying down.

64. If both these tests are passed, the Chief Executive has a final discretion not to issue a permit on character grounds. If a candidate satisfies these criteria, a permit is issued, at which time the licensee is issued with a copy of the Code.

65. A licence is issued for a period of one year. After that year a shooter need only renew his licence, and is not required to be re-tested.

66. Ms Farroway gave evidence of a similar program operated through TAFE in Adelaide. Ms Farroway explained the compulsory firearms accreditation test and testing of knowledge of the Code and other regulations in South Australia – Ts 58, Ts 64.

67. Most of the shooters in Queensland work on a part-time basis, while most in South Australia derive their main income from shooting and are therefore regarded as "full-time".

68. Mr Wyre gave evidence that Western Australia has only recently adopted the South Australian model for compulsory accuracy testing of licensed commercial shooters, but training has been available on a voluntary basis. Completion of the TAFE course on the Code’s requirements will be made compulsory for all shooters during 2005, but about one sixth have already completed the course voluntarily.

69. The evidence before the Tribunal was to the effect that all States have adopted, or are moving to adopt, a rigorous licensing process which requires shooting accuracy and a knowledge of the Code. Failure to comply with the Code should result in prosecutions and loss of licence. On the basis of the evidence tendered before it the Tribunal is of the view that the licensing provisions in each Plan enhance the likelihood of adherence to the welfare issues prescribed by the Code.

Evidence as to Compliance with the Code of Practice

70. Each of the Plans was declared subject to conditions imposed under section 303FT of the Act. The conditions imposed include requirements that:

• the shooting of animals under the Plan be in accordance with the Code as endorsed by Commonwealth and State Governments;

• all shooters be supplied, at least annually, with the Code and made aware that they are obliged to abide by the Code;

• annual reports be supplied to the Commonwealth in accordance with the Plans; and

• a quota proposal document be annually submitted for approval.

71. The Queensland Plan contains, in section 5.5 (Qld T12/147), an assessment (including performance indicators) in aid of ensuring compliance with the Code. The Plan contains, in Appendix 4, an assessment of compliance with the plan and with the legislative requirements under the Commonwealth Act – Qld T12/169-170.

72. Ms Egan cautioned against using the number of prosecutions as an index of the level of compliance; and drew attention to the adaptive management approach endorsed in the management plan, which allowed the EPA to review the plan’s operation and make any changes that would deliver a better result – Ts 48-49.

73. She also said that the EPA relied on compliance with the Code to address animal welfare concerns, because the Code is "an industry accepted nationwide code of practice" – Ts 29-30.

74. Ms Egan drew comfort from the fact that the RSPCA had favourably reported on compliance with the Code, whereas Ms Wilson regarded the RSPCA somewhat contemptuously as a "dog and cat organization".

75. Ms Egan’s was confident that the Code was being complied with, that "the latest RSPCA report showed an enormous increase in the levels of compliance with the Code" and "the industry in general is keen in proving itself compliant" because they were not interested in causing pain and suffering and, unless they can prove that they comply, they might lose their industry – Ts 8-9.

76. Mr O’Brien, relying on his own shooting experience, gave evidence that accuracy in shooting is significantly affected by weather conditions.

77. In Western Australia 15,000 kangaroos in excess of the quota were killed, this it was submitted indicating that the quota system did not work. If proper checks had been in place then the quota would not have been exceeded, or at least not exceeded to such a large degree. The excess kill was attributed to delays in reconciling actual kills with the quota. This defect in procedure has been rectified (see note paragraph 84).

78. Counsel for the Applicant submitted that compliance with the Code was uncertain, comparing the industry with a ‘secret organisation’, this because, it was said, shooters were not likely to report what happens at the scene of the killing. The evidence of Miss Egan, which we accept, weighs heavily against this submission.

79. Ms Egan said that in Queensland there was an inspection at all buying sites twice a year – this included the site itself and all shooters who were present at the site at that time. There are 12 rangers who conduct spot checks which may include rangers pulling over a shooter and checking that what is on his truck equates with what is recorded in his logbook. The Department responds to ‘dob-ins’ and this is the source of most prosecutions. Voluntary compliance is preferred but infringement notices (with a fine roughly equivalent to a night’s profit) or prosecutions (with penalties up to $200,000) are undertaken as necessary. Prosecution follows offences such as unlicensed take, unlicensed ‘keep and use’ or failure to comply with other provisions of the Code. In 2003 the Queensland Police Service undertook five prosecutions. She believed the monitoring of compliance provides a ‘strong disincentive’ to breaking the law.

80. Ms Arnold gave evidence as to her attendance at kills between 1981 and 1990 this in the Broken Hill area. She did not however know precisely where she was taken by the shooters and her experience, may have been as to events in New South Wales, South Australia or Queensland. Some of the shooters she said were not good shots and some animals were not ’cleanly dispatched’. Ms Arnold said that she saw wounded animals left on the ground and only some hours later would the shooter return and kill those that were still suffering. She had also observed, she said, live but injured kangaroos staked onto the back of trucks. These kills were ‘unmonitored’ as to types of ammunition used, how many animals were killed and how they were killed.

81. Ms Wilson was of the view that cruelty breaches occurred at point-of-slaughter and that these were unpoliced.

82. Mr O’Brien suggested that the only way of monitoring whether kills occur in accordance with the Code is to inspect at point-of-kill. Ms Egan said that no inspections in fact occur at point-of-kill because of the occupational health and safety issues associated with attending in the open at night when firearms are being used. There was also an issue of practicality as, Mr O’Brien said, there could be hundreds of shooters out each night. Ms Egan thought it was unlikely in any event the Code would be deliberately broken with an inspector present and the presence of an inspector may make a shooter nervous and cause him to miss his target.

83. Ms Farroway gave evidence about the steps taken to ensure compliance with the management plan and the Code through regular checks at chillers and meat processors – Ts 58-59:

• It is an offence to take kangaroos for commercial purposes otherwise than in accordance with the Code – Ts 64-65.

• prosecution has occurred for body shooting and breaching the Code – Ts 65, Ts 69-70.

• There is a financial incentive to head-shoot – Ts 65.

• Meat processors keep records of body-shot kangaroos (although they are not required to) and inspectors have access to those records – Ts 66.

• Meat processors were checked monthly, enabling body shot carcasses to be detected – Ts 66.

84. Mr Wyre’s evidence was to the effect that a licence condition requires compliance by all shooters with the Code (including the minimum firearm requirements) and all injured animals to be dispatched humanely. In particular, he said:

• There have been 17 prosecutions in the last 4 years in Western Australia. Western Australia has a zero tolerance policy – all kangaroos must be head shot to be accepted by processors from 2003 (processors had been refusing body shot animals from 2001). There is routine inspection of firearms whenever a shooter is stopped by an inspector.(Exhibit J)

• The Code is an enforceable licence condition – breach of which can result in prosecution or revocation of licence. Further, the Animal Welfare Act 2002 (WA) is in place in order to prosecute a person acting in breach of the Code. The Code has been provided to every shooter over the past 10 years – and the level of illiteracy amongst shooters is no higher than in other rural industry.

• Experience shows that taking the quota will not significantly diminish the population – for Western Grey kangaroos, the quota was 15% of 60% of the population (due to the conservative population estimates) – or about 8%;[1] and for Red kangaroos, the quota was 15% of the population.

• There is no sound reason to limit the number of females taken. The historical rate of 15% had been shown to have no significant impact on the population.

85. The RSPCA report described the Code as providing:

"an achievable standard of humane conduct considered to be the minimum required of persons shooting kangaroos".

and reported that the Code.

"has been adopted as the standard for humane killing within all States involved in commercial harvesting of kangaroos" – p 4.

86. Whilst Counsel for the Applicant submitted that it was an inadequate means of monitoring to rely on the RSPCA having reported that there was compliance. Table 4.2 of Exhibit C (at pp 45-46) demonstrates a compliance level in relation to the requirement for head shots that varies between 94.62 per cent (WA carcasses) and 99.58 per cent (SA carcasses -The level of compliance would be even higher if neck shots [especially those targeting C1 and C2] were treated as shots deliberately placed in, or aimed at, the head rather than body shots). The Tribunal accepts that this demonstrates that, if a kangaroo killed, the killing is likely to be in accordance with the Code.

87. Having carefully reviewed all the evidence, the Tribunal finds that in accordance with the intent of the legislation it is likely, if a kangaroo is killed, that this will be done in a way that is generally accepted to minimise cruelty, as specified by the Code.

88. The Tribunal accepts, as has been already noted, that not every killing will, be in accordance with the ideals of the Code. If there is to be a kangaroo industry then, it necessarily follows that kangaroos must be killed, and the legislation specifies that this is to be done in accordance with the Code.

89. The strict requirement in each Plan, that the Code be followed (subject to prosecution), the monitoring and enforcement measures used in each State and the RSPCA’s findings satisfy the Tribunal that the requirements of the legislation are likely to be met.

Other issues for consideration

90. Whilst the Applicant’s submissions largely addressed subsections 303FO(3)(a) and (f) of the EPRC Act the Tribunal is required to consider the other issues about which the Minister must be satisfied before approving a Plan, notwithstanding that these were not specifically addressed at the hearing by the Applicant.

91. In doing so the Tribunal largely adopts the submissions of the Respondent as to the other issues as set out in its Statement of Facts and Contentions and its final submissions, with which the Tribunal expresses its agreement.

Section 303FO(3)(b): Assessment of environmental impact

92. Section 303FO(3)(b) requires that there has been an assessment of the environmental impact of the activities covered by the relevant Plan.

Each Plan contains its own assessment of environmental impact.

93. The Queensland Plan addresses:

• Threats to conservation status of the species

• Effects of flood and drought

• Effects of pastoral development and changes in the grazing environment

• Effects of disease

• Effects of harvesting on kangaroo populations

• Non-human predation

and

• Survey and monitoring

• Direct monitoring methods

• Aerial survey

• Ground survey

• Indirect monitoring methods

• Simulation monitoring

• Quotas and their derivation

• Response to drought

• Off-target species and ecosystem impacts (T12/124-131)

94. The South Australia Plan addresses:

• Current Conservation Status of Kangaroos, Distribution and Extent of Habitat

• Background Information to Kangaroo Populations

• History of Commercial Harvest

• Involvement of Regional Boards

• Availability of the Entire State for Harvest

• Dynamics of Kangaroo Harvest

• Management of Total Grazing Pressure (T11/34-38)

95. The Western Australia Plan details:

• Current Conservation Status of Kangaroos, Distribution and Extent of Habitat

• Background Information to Western Grey Kangaroo Populations

History of Commercial Harvest

• Availability of the Restricted Parts of the State for Harvest

Dynamics of Kangaroo Harvest

• Management of Total Grazing Pressure

Potential Threats to Kangaroo Species were examined as to:

• Environmental impacts

• Habitat loss and modification

• Disease

• Predation

Potential impacts of the Plan examined:

• Impacts on Kangaroos

• Sustainability of Commercial Harvest

• Demographic impacts of harvesting

• Genetic impacts of harvesting

• Animal Welfare Concerns

• Impacts on Habitat

• Impacts on Ecosystems or Other Species (T19/299-305, and WA T19/356-36)

96. In addition to ensuring that the above assessments had been made, the Department reviewed each Plan’s conformity with this requirement (Qld T13/173-174,SA T12/142; and WA T20/375).

Section 303FO(3)(c): Management controls directed towards ecological sustainability

97. Section 303F)(3)(c) requires the relevant Plan to include management controls directed towards ensuring ecological sustainability of the relevant taxon, any taxa that may be affected and the relevant ecosystem.

98. Each Plan is based on the setting of an annual quota. According to the best scientific evidence, the taking of the quota (or a higher take of up to 15 per cent or 30 per cent) will not threaten the ecological sustainability of the relevant species, other species or any relevant ecosystem.

99. The Queensland Plan addresses the ecology and conservation status of the red kangaroos and eastern grey kangaroos (Qld T12/110-118) and deals with the effects of harvesting the species (Qld T12/126-127). It proposes a regime of monitoring and quota-setting through direct monitoring, aerial surveys, ground surveys, indirect monitoring methods and simulation monitoring (Qld T12/127-130). It also considers the effect of harvesting on non-target species and the ecosystem (Qld T12/130- 131).

100. The South Australia Plan assesses the potential impact of the Plan on ecological sustainability in its appendix 3. In particular it considers sustainability of commercial harvest and demographic impacts of harvesting (SA T11/129-130). It addresses this requirement by establishing a monitoring system, with key actions as follows:

"Record and analyse number and sex of each species taken through commercial harvest

• Submit quarterly reports to Environment Australia detailing numbers removed through commercial harvest and other methods (e.g. non-commercial destruction)

• Use literature survey and consultative techniques to identify all potential impacts of harvest".

101. Each Western Australia Plan addresses this requirement by establishing a monitoring system to monitor harvest levels and to identify potential impacts of harvest so as to:

• Record and analyse number and sex of Western grey/red kangaroos taken through commercial harvest

• Submit quarterly reports to Environment Australia detailing numbers removed through commercial harvest and other methods (e.g. non-commercial destruction) as well as carcass weight and harvest sex rations; and

• Use literature survey and consultative techniques to identify all potential impacts of harvest on Western grey/red kangaroos, their habitat and ecosystems

The Department has reviewed each Plan’s conformity to this requirement: (Qld T13/174; SA T12/142-143; WA T20/377).

102. In summary, the management controls in each Plan are directed towards ensuring ecological sustainability. The evidence before the Tribunal points directly against any risk that the ecological sustainability of the target species, other species or the ecosystem will be jeopardised by activities under the Plans.

Section 303FO(3)(d): Not detrimental to taxon and ecosystem

103. Section 303FO(3)(d) requires that the activities covered by the relevant plan will not be detrimental to survival and conservation status of the relevant taxon and ecosystem.

This requirement is addressed in each Plan.

104. The Queensland Plan deals with the conservation status of the species and observes:

"...It is clear that authorities on the conservation status of these species are in general agreement. Indeed, there is now common ground in Australia between wildlife authorities, academics, conservation groups and some animal welfare groups that the species subject to commercial harvesting for export are neither endangered nor threatened." Qld T12/118

105. The Plan also considers the effect of harvesting on the species’ conservation status at Qld T12/126-127 and considers the effect of harvesting on the ecosystem at Qld T12/130-131. Performance indicators require no impact on the species’ conservation status (Qld T12/132 and 139), in particular:

• No species addressed by this wildlife trade management plan has become of a higher conservation status due to factors attributed to the commercial harvest

...

• No change has been found in the distribution of commercial species that can be attributed to the commercial harvest

...

• principle factors determining distribution and abundance of commercially harvested species other than the impact of harvests are explored. Impacts of these factors on population densities and trends are built into future projections of population densities and quota determinations.

The Plan also provides for the monitoring of kangaroo populations through:

• annual broad scale aerial survey using helicopters and fixed strip-width transect survey methodology (some survey blocks may be surveyed biannually)

• small scale annual ground surveys on foot using line transect survey methodology; and

• vehicle surveys may be carried out on an infrequent basis and particularly when monitoring environmental impacts other than harvesting activities (Qld T12/138).

106. The South Australia Plan aims to maximise the conservation of kangaroos in the State by adopting a regional conservation approach. Performance measures for this aspect of the Plan are:

• Regional conservation of kangaroos is facilitated via the development of regional conservation ratings, and determining the extent and distribution of available habitat for kangaroos. Measured via:

• Number of regions with conservation ratings for kangaroos.

• Number of regions with identified extent and distribution of kangaroos and kangaroo habitat (SA T11/101).

• No change to state wide conservation status of kangaroo species due to commercial kangaroo harvest

• Regional kangaroo populations maintained above or within regional threshold densities as a result of commercial kangaroo harvest (SA T11/104).

Appendix 3 to the Plan deals with the Plan’s impacts on the species and the ecosystem – SA T11/68-69.

107. The Western Australia Plans aim to facilitate conservation of the species across their natural range through a regional conservation approach, identifying the number of regions supporting western grey and red kangaroos and their density in each of the identified regions (WA T19/271-272, WA T19/330-331). Appendix 3 to the Plan deals with the Plans’ impact on the species and the ecosystem – WA T19/302-304, WA T19/359-362.

108. The Department has reviewed each Plan’s conformity to this requirement: Qld T13/174-175; SA T12/143; WA T20/376-377.

109. The evidence before the Tribunal points directly against any risk of detriment to the survival and conservation status of the relevant taxon or ecosystem. The quotas have been set at levels where those values are not compromised.

Section 303FO(3)(e): Mitigating, minimising, monitoring and responding to environmental impact

110. Section 303FO(3)(e) requires that the relevant Plan includes measures to mitigate, minimise, monitor and respond to changes in the environmental impact of the activities covered by the Plan.

This requirement is addressed in each management Plan.

111. The Queensland Plan is constructed on regional quotas for each species, based on population densities. The Plan provides for monitoring of harvest data on a regional basis, and modification of the Plan’s management if there are significant changes in the populations – Qld T12/132. Variable annual quotas are set to permit a safe sustained yield, with the harvest being monitored and regions closed where quota limits are reached. Annual quotas are fixed for each species using information, where available in respect of:

• current population trends;

• review of previous harvests;

• climatic conditions;

• the non-commercial harvest i.e. damage mitigation and recreational harvests and their significance;

• proportion of the population not subject to harvesting (including land use trends); and

• non-harvest mortality and its significance (QLD T12/134-136)

Flexible management will respond to observed significant impacts – Qld T12/136.

112. The South Australia Plan includes the objective of improving understanding of the impact of harvesting on the species, their habitat and the relevant ecosystems, and provides for monitoring that will allow the development of management controls to minimise potential negative impacts. (SA T11/110).

113. The Western Australia Plans are in almost identical terms in this regard to that of South Australia (WA T19/284-285, WA T19/341-342).

114. The Department has reviewed each Plan’s conformity to this requirement: Qld T13/175, SA T12/143-144 and WA T20/377.

115. Again, the expert evidence is that changes in the environmental impact of the activities covered by the Plan are unlikely to be significant. Given that situation, the provision in each Plan for the monitoring of impacts and the capacity to adapt management where changes are detected ensures that this requirement is met.

116. The conservative quotas set under the management Plans (for example, the quota for Western Greys is about 8 per cent of the population of that species – see paragraph 26.6 above) and the expert evidence that the species’ viability would not be threatened even if the take were 25 per cent or 30 per cent of the population indicate that the over-run in the Western Australia Western Grey quota in 2003 would not have had an environmental impact.

Section 303FO(3)(g): Other conditions

117. No other conditions are specified in the regulations.

Section 303FO(4): Effective State legislation

118. In deciding whether to approve a Plan, the Minister is required to have regard to whether there is effective legislation in force in the relevant State applying throughout the State relating to the protection, conservation or management of kangaroos.

119. The Queensland legislation is listed in the Department’s Advice to the Minister at Qld T13/175:

"The Nature Conservation Act 1992 is the principal act by which conservation in Queensland is addressed. The Nature Conservation Regulation 1994 is subordinate legislation that allows the Governor in council to make regulations for the purposes of the Act (Section 175). Nature Conservation (Wildlife) Regulation 1994 is subordinate legislation that prescribes species of wildlife to be protected wildlife, international wildlife, or prohibited wildlife. The regulation also specifies the declared management intent for each class of wildlife.

Nature Conservation (Macropod Harvesting) Conservation Plan 1994 is subordinate legislation specifically relating to macropod harvesting in Queensland approved under Section 119 of the Act. This legislation is currently under review. The reviewed plan incorporating any further changes necessary in the Wildlife Trade Management Plan will be available early 2003. In the interim, the current Conservation Plan remains valid and enforceable. The Wildlife Trade Management Plan 2003-2007 allows for the sustainable and humane commercial export of kangaroo products from Queensland.

Under Schedule 5 of the Nature Conservation (Wildlife) Regulation 1994, the eastern grey kangaroo, red kangaroo and common wallaroo are species of common wildlife that may be subject to a declared harvest period (Section 73 of the Act). The Nature Conservation (Macropod Harvesting) Conservation Plan 1994 specifies the use of a harvest period and other conditions for the taking of macropods. For such species, a harvest period may be declared in the whole or any part of Queensland, and for the whole or any part of a year, as long as the harvest meets the provisions of Section 73 of the Act. The Act requires the take to be managed so it is ecologically sustainable."

120. It has not been suggested in this proceeding nor do we find that the legislation fails to meet section 303FO(4) criteria.

121. The South Australian legislation is identified at SA T11/34-35, and is reviewed in the Department’s advice to the Minister at SA T12/145, as follows:

"Kangaroos and all native fauna are protected under the National Parks and Wildlife Act 1972. This plan of management will be approved under section 60Iof the National Parks and Wildlife Act 1972. A management plan is required under this Act for the commercial harvest of any protected species.

The management of the commercial harvest, through permits and sealed tag procedures, is regulated by the Kangaroo Sealed Tag Regulations 1990 (currently being redrafted).

The National Parks and Wildlife Act 1972 and the Kangaroo Sealed Tag Regulations 1990 apply to the entire State of South Australia. This legislation is enforced by Wardens designated under the Act, which includes all NPWSA Rangers and every member of the South Australian Police."

122. Again, it has not been suggested nor do we find that the legislation fails to meet the section 303FO(4) criteria.

123. The Western Australian legislation is identified at WA T19/265, WA T19/324, and is reviewed in the Department’s advice to the Minister at WA T19/378, as follows:

"Kangaroos and all native fauna are protected under the Wildlife Conservation Act 1960. Harvesting of a protected species in Western Australia requires a licence under Regulation 6 of the Wildlife Conservation Regulations 1970. The taking of Western grey kangaroos in Western Australia is regulated via licence and tag procedures detailed in Regulations under this Act. This legislative framework applies to the entire State of Western Australia.

Pursuant to Section 35 of the Agriculture and Related Resources Protection Act 1976, the Western grey kangaroo is declared by the Agriculture Protection Board as a "Category A7" declared animal in the whole of Western Australia. Category A7 declaration applies in respect of an area if the animals are native to that area and are animals for which a management program should, in the opinion of the Board, be approved and implemented in relation to that area."

124. As with the other States, it has not been suggested nor do we find that the legislation fails to meet the section 303FO(4) criteria.

125. On the basis of the evidence before it and for the reasons set out above,, the Tribunal is satisfied in respect of each of the matters specified in section 303FO(3) of the EPBC Act. Consideration of the criteria referred to in section 303FO(4) supports approval of each management Plan.

Summary of conclusions

126. The Tribunal has reviewed each of the Minister’s decisions referred to at the outset of these reasons for decision and has considered the issues raised by the Act and the Regulations.

127. On the evidence before it, the Tribunal is satisfied, in relation to each of the Plans, that the prerequisites to approval specified in s 303FO(3) of the EPBC Act have been complied with. Consideration of the criteria referred to in s 303FO(4) warrants approval being given to each management plan.

Tribunal’s observations on public consultation and transparent decision making

128. Although not factors necessarily to be considered in arriving at our conclusion on the evidence to affirm the decision under review, we are mindful, as no doubt is the Respondent, of the general animal welfare concerns expressed by and on behalf of the Applicant. These concerns arise from the emotionally charged environment where an animal which is not only a national symbol, present on our Coat of Arms, but is also associated with a recognised need to preserve our indigenous marsupials for our own benefit and that of future generations. We are satisfied that the management plans seek to achieve these ends consistent with the commercial viability of the animal processing industry.

129. Many of these animal welfare concerns may have arisen as the result of misinformation or insufficient information being publicly available. Many may have arisen from an unwarranted but understandable anxiety that the Applicant’s point of view was not being listened to by the State authorities and the Respondent

130. There are two areas where, having in mind the evidence before it the Tribunal considers improvements might be made by the State agencies in the interests of more effective public consultation and more transparent decision making. These areas relate to the public consultative process regarding Plans and the publication of reasons for setting the quotas at particular levels. 

131. Dr Pople, provided evidence on these issues (Ts 101-106). In response to the Tribunal pointing out that ‘many industries have problems with their public image and they try to solve that by community consultation and informing the community in the best way that they can’ Dr Pople stated:

"I think there's also been an enormous amount of consultation, if you like, community consultation in kangaroo management, more so than perhaps any other wildlife, area of wildlife management so I'm sure there's probably room for more but I'm not sure if it's warranted in this case."

Dr Pople agreed, however, that there was room for "improved public relations, education, explaining how things are managed" in the kangaroo industry.

132. Dr Pople went on to state:

"I think one area that I guess I would like to see changed is at the moment there are advisory committees and I think it's important that we distinguish advisory committees or technical advisory committees from consultative committees, I think those two need to be distinguished, in that a consultative committee is one where you gather community opinion, community views or stake-holder views and that's where you might generate the aims of your program, the objectives of your program; and then you have a technical advisory committee that would then advise the management agency. At the moment many of these, some of these advisory groups don't work terribly well because they're really a consultative group made up of warring parties that cannot provide Government or management agencies with the technical advice that they need. So, I think if there is – I think a useful shift would be to separate those, separate the advisory group into a consultative group and a technical advisory group, I think that would function a lot better."

133. It was Dr Pople’s understanding that "the kangaroo industry tries to keep as low a profile as possible and they would like to see management agencies... operate...independently from them". He considered that the kangaroo industry has not advertised itself very well although it seems to be improving. He thought that over the last 10 to 15 years there had been a shift in management agencies to their being more transparent. However he thought the agencies tended to only adjust their management regimes when really prompted.

134. In response to a question from the Tribunal Dr Pople outlined a number of things that needed to be considered in setting a quota:

"... the most important thing is that the quota is a percentage of the population so the quota varies from year to year, so in other words it tracks the population so as the population goes down the quota goes down, and as it goes up the quota goes up. That proportion is based ... on both experience, empirical evidence and also modelling and we've been able to fine tune that over time ...."

135. Dr Pople stated that the information to "explain the quota setting process" has become more readily available but he was unsure how many people would go to the website and download the background document.

136. Details of the public consultation process in regard to the management plans are set out at Qld T8/97-101, SA T13/146-191 and WA T8/70-75.

137. The Tribunal considers that the process of development of Plans would be enhanced if sustained efforts were made to improve the public image of the kangaroo industry, and if public consultation regarding the management and welfare of kangaroos as well as considerations in relation to quota setting were more enthusiastically embraced by the States and the Respondent.

DECISION 

138. For the reasons herein before set forth, the Tribunal affirms the decisions under review.